Senator Omtatah, advocate Matindi want court to stop Finance Bill debate

When President William Ruto signed the Finance Bill 2023 to law at State House, Nairobi. [PCS]

The Kenya Kwanza administration’s proposal to introduce additional taxes has encountered yet another legal obstacle.

A petition has been lodged at the High Court in Nairobi to stop the National Assembly from passing the contentious Finance Bill 2024.

Busia Senator Okiya Omtatah and human rights advocate Eliud Karanja Matindi are the architects of the suit, which was filed yesterday. They have initiated proceedings against the National Assembly, the Treasury Cabinet Secretary, and the Attorney General, citing the Senate as an interested party.

The petitioners have requested an interim injunction to halt the ongoing public participation on the Finance Bill 2024, as announced in the National Assembly’s public notice dated May 15, 2024.

“Pending the hearing and determination of the application and/or the Petition, the Honourable Court be pleased to suspend the ongoing public participation on the Finance Bill 2024 which is being conducted in the National Assembly’s public participation advert dated May 15, 2024,” stated the two in the petition.

Omtatah and Matindi argue that the Bill has been prematurely introduced, lacking an approved fiscal framework for the 2024/2025 Financial Year, which it aims to implement.

They are seeking an expedited hearing and have urged that the matter be escalated to the Chief Justice for the constitution of a bench comprising an odd number of judges, no fewer than three, to deliberate on the case.

The petitioners contend that the fiscal framework, essential for the Finance Bill 2024, can only be established through the enactment of the Appropriation Act 2024, which mandates public participation.

Published in the Kenya Gazette on May 9, 2024, the Finance Bill 2024 is currently undergoing public scrutiny.

According to Omtatah and Matindi, the Finance Bill 2024 can only be legitimately and constitutionally introduced in the National Assembly after the formal enactment of the Appropriation Act 2024. Subsequently, it can be deliberated upon, approved by Parliament, and ratified into law by the President, thereby becoming the Finance Act 2024.

They emphasise that without the fiscal framework outlined in the Appropriations Act 2024, the Finance Bill 2024 is effectively non-existent.

The petition highlights that Section 39A (4) (a) of the Public Finance Management Act (Cap. 412A) (PFMA) stipulates that the National Assembly must ensure that revenue projections align with the approved fiscal framework. Currently, they note, there is no sanctioned fiscal framework for the FY 2024/2025.

The petitioners assert basing the Finance Bill 2024 on the FY 2024/2025 budget revenue estimates, submitted to the National Assembly on April 30, 2024, by the Cabinet Secretary, is both illegal and unconstitutional.

They maintain that only after the Financial Year 2024/2025 budget revenue and expenditure estimates have been legally ratified can the Finance Bill 2024 be constitutionally and logically published and processed into the Finance Act 2024.

Omtatah and Matindi argue that the National Assembly cannot enact the Finance Act 2024—intended to generate revenue for the 2024/2025 budget—without first legally approving the revenue estimates through the Appropriation Act 2024.

They accuse the National Assembly of attempting to defraud taxpayers by collecting revenue for unapproved expenditures, describing the move to enact the Finance Act 2024 prior to the Appropriation Act 2024 as a blatant scam.

The petitioners are calling for a judicial declaration that the national government’s annual budget must include revenue and expenditure estimates, as mandated by Article 220(1)(a) of the Constitution.

They are also seeking a declaration that the National Assembly’s decision to enact the Finance Act 2024 before the Appropriation Act 2024 is both unlawful and unconstitutional.

Furthermore, they argue the public notice issued by the Clerk of the National Assembly on May 15, 2024, inviting public and stakeholder input on the Finance Bill 2024, should be deemed premature and invalidated.